Sri Sushil Sarkar, Siliguri V. DCIT, CIR-2, MATIGARA, SILIGURI, Siliguri

ITSSA 105/KOL/2015

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3283 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-03-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 22-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R S BISWALCIT
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A, BENC H KOLKATA BEFORE SHRI N.V.VASUDEVAN, JM & DR. A.L.SAINI, AM IT(SS)A NO.105/KOL/2015 ( / ASSESSMENT YEAR:2012-2013) SRI SUSHIL SARKAR, C/O S.L.AGARWAL(ADVOCATE), 33, M.G.ROAD, KHALPARA, SILIGURI-734005 VS. DCIT/CIR-2, AAYAKAR BHAWAN, MATIGARA, SILIGURI-734010 ./ ./PAN/GIR NO.: ALTPS 0270 N ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI SOUMITRA CHOUDHURY, ADVOCATE REVENUE BY : SHRI R.S.BISWAL,CIT / DATE OF HEARING : 01/03/2017 /DATE OF PRONOUNCEMENT 19/04/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO THE ASSESSMENT YEAR 2012-2013, IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A), SILIGURI, IN APPEAL NO. 10 AND 11 AND 12/CI T(A)/SLG/2014-15, DATED 24.07.2015, WHICH IN TURN ARISES OUT OF AN OR DER PASSED BY THE ASSESSING OFFICER (AO) UNDER SECTION 153A/143(3) OF THE INCOME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 05.03.2014. 2. IN CASE OF THE ASSESSEE UNDER CONSIDERATION AN INFORMATION WAS RECEIVED FROM (ATU) AIR INTELLIGENCE UNIT, BAGDOGRA THAT ON 25.09.2011 TWO PASSENGER NAMELY SUSHIL SARKAR AND SHRI PARIJA T DHAR WERE TRAVELLING BY SPICE JET FLIGHT FROM BAGDOGRA AIRPORT TO KOLKAT A ON 25/09/2011, CARRYING TOGETHER TOTAL CASH OF RS.34.00 LAKHS. THE Y WERE INTERCEPTED AT KOLKATA AIRPORT. DURING INTERROGATION, ASSESSEE ADM ITTED THAT ENTIRE CASH OF RS.34.00 LAKHS BELONGED TO HIM. THE CASE WAS SUB SEQUENTLY CONVERTED TO A SEARCH ACTION U/S. 132 OF THE ACT AND A SUM OF RS.31.00 LAKHS WAS IT(SS)A NO.105/15 SRI SUSHIL SARKAR 2 SEIZED. OUT OF THE CASH FOUND OF RS.34.00 LAKHS, TH E ASSESSEE DISCLOSED RS.9.00 LAKHS AS HIS BROKERAGE INCOME IN THE RETURN FOR A.Y. 2012-13. HOWEVER, THE AO CONSIDERED THE ENTIRE AMOUNT OF RS. 34.00 LAKHS AS ASSESSEE`S UNDISCLOSED INCOME AND ADDED THE BALANCE AMOUNT OF RS.25.00 LAKHS IN THE A.Y. 2012-13. 3. AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE FIL ED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS DELETED THE ADDITION TO THE EXTENT OF RS. 7,50,000/- OUT OF TOTAL ADDITION MADE BY AO AT RS. 25,00,000/-. THE LD CIT (A) OBSERVED THAT THE ASSESSEE RECEIVED RS. 7,50,00 0/- FROM SHREE BIPLAB DEB & OTHERS AS ADVANCE TOWARDS SALE OF LAND ADMEAS URING 2.52 ACRES INCLUDING TEA PLANATION, VIDE NOTARIZED DEED, DATED 12/09/2011. THE ASSESSEE EXPLAINED IN HIS STATEMENT DATED 25/09/201 1 THAT HE RECEIVED ADVANCE TOWARDS SALE OF A TEA GARDEN. THE ASSESSEE RECEIVED THE SAID CASH A FEW DAYS BEFORE THE SEARCH. THE SAID TRANSAC TION WAS DULY NOTARIZED AND THE PAYEE HAD CONFIRMED THE TRANSACTI ON THEREFORE, LD CIT(A) DELETED THE ADDITION OF RS.7,50,000/- REGARDING RS. 13,00,000/- THE ASSESSEE FIRST STATED THAT THE MONEY WAS RECEIVED BY HIM FROM A BROKER NAMED SHRI DHIRAJ GHO SH. WHEN SHRI DHIRAJ GHOSH DENIED HAVING PAID ANY MONEY TO THE APPELLANT , THEN ASSESSEE CHANGED HIS STATEMENT AND SAID THAT HE RECEIVED THE SAID MONEY FROM SHRI BIPLAB DEB ON BEHALF OF SMT. RITA ROY. WHEN SH RI BIPLAB DEB STATED THAT HE PAID RS. 13.00 LAKHS DIRECTLY TO SMT. RITA ROY BEFORE THE NOTARY SRI NABENDU NARAYAN DUTTA, THEN AGAIN THE ASSESSEE STATED THAT AFTER RECEIVING THE AMOUNT OF RS.13.00 LAKHS FROM SHRI BI PLAB DEB ON IT(SS)A NO.105/15 SRI SUSHIL SARKAR 3 12/09/2011, SMT. RITA ROY HANDED OVER THE CASH TO H IM AND THAT MONEY HE WAS CARRYING WITH HIM ON 25/09/2011. THE ASSESS ING OFFICER, RIGHTLY DID NOT BELIEVE EITHER OF THE VERSION AS THOSE WERE CONTRADICTORY TO EACH OTHER. THE ASSESSING OFFICER ALSO RIGHTLY REJECTED THE VERSION OF SMT. RITA ROY STATED IN HIS LETTER DATED 21/10/2013 THAT AN A DVANCE OF RS.13.00 LAKHS WAS RECEIVED ON HER BEHALF BY THE ASSESSEE FR OM SHRI BIPLAB DEB, AS SHE HERSELF RECEIVED THE SAID AMOUNT FROM SHRI D EB. IN VIEW OF SUCH, CIRCUMSTANCES, THE LD CIT(A) HELD THAT SMT RITA ROY 'S CASH OF RS.13.00 LAKHS WAS NOT A PART OF RS.34.00 LAKHS FOUND FROM T HE POSSESSION OF THE ASSESSEE, THEREFORE LD CIT(A) CONFIRMED THE ADDITIO N OF RS.13 LAKHS. REGARDING RS.4,50,000/-, THE ASSESSEE TRIED TO EXPL AIN THAT IT IS OUT OF CASH IN HAND OF RS.4,76,072/- AS ON 01.04.2011, AS PER BALANCE SHEET ON 31.03.2011. THE LD.CIT(A) OBSERVED THAT AS SESSEE HAS FILED ITS RETURN OF INCOME FOR A.Y. 2011-12 ON DATED 19/1 0/2011, I.E. AFTER THE DATE OF SEARCH. THE ASSESSEE HAS TRIED TO ADJUS T RS. 4,50,000/- BY WAY OF FILING THE BALANCE SHEET AFTER THE DATE O F SEARCH. THE ASSESSEE DID NOT EXPLAIN THIS FACT IN THE STATEMENT TAKEN BY THE SEARCH PARTY DURING THE SEARCH U/S 132 OF THE ACT. THE BALANCE SHEET FILED BY THE ASSESSEE BEFORE THE LD CIT(A) WA S NEITHER SIGNED NOR ACKNOWLEDGED. THE LD CIT (A) FURTHER OBSERVED T HE ASSESSEE FILED THE BALANCE SHEET DURING APPEAL PROCEEDINGS P ERHAPS TO JUSTIFY THE SOURCE OF A PORTION OF CASH HE WAS CARRYING ON 25/09/2011. IN ANY CASE THE ASSESSEE NEVER SAID THAT HE WAS CARRYI NG CASH IN HAND IN THE STATEMENT RECORDED UNDER OATH AT THE TIME OF SEARCH. IN THE STATEMENT RECORDED UNDER OATH AT THE TIME OF SEARCH THE ASSESSEE CATEGORICALLY STATED THAT THE SOURCE OF ENTIRE CASH OF RS.34.00 WAS ADVANCE RECEIVED FOR SALE OF A TEA GARDEN, THEREFOR E THE LD CIT(A) CONFIRMED THE ADDITION OF RS.4,50,000/- IT(SS)A NO.105/15 SRI SUSHIL SARKAR 4 THIS WAY, THE LD CIT(A) CONFIRMED THE ADDITION OF R S.(13,00,000 + 4,50,000), 17,50,000/-. 4. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. FOR THAT, THE APPELLATE ORDER PASSED BY LD. C.I T (A) WAS DEFECTIVE ON THE GROUND THAT THE CIT (A) FAILED TO APPRECIATE THAT, OUT OF THE UNDISCLOSED INCOME OF RS. 25,00,00 0/-, THE ASSESSEE WAS OWING RS. 4,50,000/- AS HIS CASH IN HA ND AND THE ASSESSEE WAS FURTHER CARRYING RS. 13,00,000/ - OWNE D BY ONE SMT. RITA ROY, WHO RECEIVED AS ADVANCE AGAINST SALE OF HIS AGRICULTURAL LAND. IN SPITE OF FILLING NECESSARY EV IDENCE ON ACCOUNT OF RS.4,50,000/- THE CIT (A) FAILED TO GIVE ANY REASON FOR NOT ALLOWING RELIEF ON THIS TWO HEADS. THUS THE LD. CIT (A) MAKES A MISTAKE IN NOT ALLOWING THE RELIEF RS. 17,5 0,000/- OF UNDISCLOSED INCOME OF RS. 25,00,000/- AS ADDED BY T HE AO. 2. FOR THAT THE ASSESSEE PRAYS THAT A FURTHER RELI EF OF RS. 17,50,000/- MAY KINDLY BE GRANTED FROM THE UNDISCLO SED INCOME AS TAKEN BY THE AO AMOUNTING TO RS. 25,00,000/-. 3. FOR THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTE R AND MODIFY ANY OF THIS AFORESAID GROUND OF APPEAL ON OR BEFORE THE APPEAL. 5. LD. AR FOR THE ASSESSEE HAS PRIMARILY REITERATED THE SAME ARGUMENTS AS DONE BEFORE THE LD CIT(A) AND LD DR FO R THE REVENUE RELIED ON THE ASSESSMENT ORDER MADE BY THE ASSESSING OFFIC ER. HAVING HEARD BOTH THE PARTIES, WE NOTICED THAT LD AR FOR THE ASS ESSEE DID NOT BRING ANY COGENT EVIDENCE TO PROVE THAT THE ADDITIONS CONFIRM ED BY THE LD CIT(A) ARE NOT JUSTIFIED. REGARDING RS. 13,00,000/- THE ASSESSEE FIRST STATED THAT THE MONEY WAS RECEIVED BY HIM FROM A BROKER NAMED SHRI DHIRAJ GHOSH. WHEN SHRI DHIRAJ GHOSH DENIED HAVING PAID ANY MONEY TO THE APPELLANT, THEN ASSESSEE CHANGED HIS STATEMENT AND SAID THAT H E RECEIVED THE SAID MONEY FROM SHRI BIPLAB DEB ON BEHALF OF SMT. RITA R OY. WHEN SHRI BIPLAB DEB STATED THAT HE PAID RS. 13.00 LAKHS DIRECTLY TO SMT. RITA ROY BEFORE THE NOTARY SRI NABENDU NARAYAN DUTTA, THEN AGAIN TH E ASSESSEE STATED IT(SS)A NO.105/15 SRI SUSHIL SARKAR 5 THAT AFTER RECEIVING THE AMOUNT OF RS.13.00 LAKHS F ROM SHRI BIPLAB DEB ON 12/09/2011, SMT. RITA ROY HANDED OVER THE CASH TO H IM. CONSIDERING THESE FACTUAL CIRCUMSTANCES, WE ARE OF THE VIEW THA T ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD CIT (A), IS JUSTIFIED. REGARDING RS.4,50,000/-, THE ASSESSEE TRIED TO EXPLAIN THAT I T IS OUT OF CASH IN HAND OF RS.4,76,072/- AS ON 01.04.2011, AS PER BALANCE SHEE T ON 31.03.2011. THE ASSESSEE HAS TRIED TO ADJUST RS. 4,50,000/- BY WAY OF FILING THE BALANCE SHEET AFTER THE DATE OF SEARCH. THE BALANCE SHEET F ILED BY THE ASSESSEE BEFORE THE LD CIT(A) WAS NEITHER SIGNED NOR ACKNOWL EDGED. IN ANY CASE THE ASSESSEE NEVER SAID THAT HE WAS CARRYING CASH I N HAND IN THE STATEMENT RECORDED UNDER OATH AT THE TIME OF SEARCH . IN THE STATEMENT RECORDED UNDER OATH AT THE TIME OF SEARCH THE ASSES SEE CATEGORICALLY STATED THAT THE SOURCE OF ENTIRE CASH OF RS.34.00 W AS ADVANCE RECEIVED FOR SALE OF A TEA GARDEN, HENCE CONSIDERING THE FAC TUAL POSITION WE CONFIRM THE ADDITION MADE BY LD CIT(A) AT RS. 4,50,000/-. THEREFORE, WE CONFIRM THE ADDITION MADE BY LD CIT(A ) OF RS. 13,00,000/- AND RS. 4,50,000/- AS EXPLAINED ABOVE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE, IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19/04/ 2017. SD/ - (N.V.VASUDEVAN) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 19/04/2017 '#$%&/PRAKASH#MISHRA ,SR.PS. IT(SS)A NO.105/15 SRI SUSHIL SARKAR 6 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) $ % , / ITAT, KOLKATA 1. / THE APPELLANT-SRI SUSHIL SARKAR 2. / THE RESPONDENT.- DCIT, CIRCLE-2, MATIGARA, SILIGURI 3. 0 ( ) / THE CIT(A), KOLKATA. 4. 0 / CIT 5. 123 4456 , 56 , / DR, ITAT, KOLKATA 6. 378 / GUARD FILE. 1 4 //TRUE COPY//